Citation NR: 9606182
Decision Date: 03/11/96 Archive Date: 03/16/96
DOCKET NO. 94-07 621 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for burn scars of the
chin.
2. Entitlement to secondary service connection for bruxism.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. T. Jones, Counsel
INTRODUCTION
The veteran served on active duty from December 1953 to
December 1956.
This matter comes to the Board of Veterans' Appeals (Board)
from a September 1993 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Philadelphia,
Pennsylvania, which denied service connection for burn scars
of the chin and a dental condition. The dental condition for
which the veteran seeks service connection is bruxism
(grinding the teeth).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that unsuccessful sandpaper surgery of
pre-existing burn scars of the chin in service made the scars
more noticeable. He asserts that his scarring caused him to
become the object of derision and made him nervous, causing
him to grind his teeth. He seeks service connection for
bruxism and the resultant wearing down of his teeth.
The veteran’s representative asks for additional development
to secure any pre-service medical records.
DECISION OF THE BOARD
The Board, in accordance with 38 U.S.C.A. § 7104 (West 1991 &
Supp. 1995), has reviewed and considered all the evidence in
the veteran's claims file. Based on its review of the
relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against the claim for
service connection for scars of the chin and that his claim
for bruxism secondary to scars of the chin must be denied.
FINDINGS OF FACT
1. Preexisting burn scars of the chin did not increase in
severity during active service.
2. Service connection not being in effect for any disability,
the veteran’s bruxism cannot be causally related to or
aggravated by any service connected disorder.
CONCLUSIONS OF LAW
1. Burn scars of the chin were not incurred in or aggravated
by active service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West
1991); 38 C.F.R. §§ 3.303, 3.310 (1995).
2. The veteran’s bruxism is not proximately due to or the
result of any service connected disorder or injury. 38
U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.310(a)
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran served on active duty from December 1953 to
December 1956.
The veteran’s December 1953 enlistment examination noted burn
scars of the chin. The history portion of the examination
noted the veteran was burned on his face at the age of four.
The service dental records show the veteran was missing a
number of teeth on his initial dental examination. During
service he underwent routine treatment including the
extraction of two teeth and the filling of several cavities.
In May 1956 he was given partial dentures. The service
medical records show the veteran underwent sandpaper surgery
in March 1955. He was referred to a surgeon in April 1955.
The request noted there had been an attempt to sandpaper part
of the scar away that was unsuccessful because the doctor did
not go deep enough. The doctor at the surgical clinic
examined the veteran in regard to plastic revision; he said
the scars were not unsightly, sandpapering would not help
because of the width of the scarred area, and skin grafting,
flap swinging, etc., should not be attempted by a general
surgeon. The veteran was advised that only a plastic surgeon
should undertake surgical revision of the scar. The doctor
added that the military was under no obligation to correct
the scar. Later in July 1956 (the year does not appear on
the service record, but it was reported he had 6 months left
on his military obligation), the veteran was referred for
possible plastic revision of the scarring. The doctor at the
surgical clinic said he did not think any surgery would help
the veteran’s rather severe scar. The veteran’s December 1956
discharge examination noted burn scars of the chin.
In a May 1957 dental rating action, service connection was
established for six teeth.
In August 1992 the veteran filed a claim for service
connection for a dental condition and residuals of sandpaper
surgery to the face.
On a May 1993 VA skin examination, the veteran reported that
his chin had been disfigured since he was four years old, and
this had resulted in an ugly scar. He said he underwent
dermabrasion (sanding of scar) during service which made the
condition worse. He said that friends and acquaintances
derided him because of the scar and this caused him to become
nervous and grind his teeth. The examiner reported there was
very disfiguring scarring of the entire chin and
submandibular area. The examiner said it would be necessary
to examine pre-service photographs to determine whether the
dermabrasion had aggravated the scarring. Close-up, color
photographs of the scarring of the chin area were taken and
are enclosed with the examination report.
On a June 1993 VA dental examination, the veteran reported
that his chin had been burned when he was four years old, but
that since sandpaper surgery in service he had “nervous
movements” of his jaw causing him to grind his teeth. The
diagnosis was poor occlusion and masticatory ability due to
abrasion and/or fracture, possibly due to bruxism of unknown
cause.
In July 1993 the veteran submitted a large, glossy, pre-
service photograph of himself. He said it was the only
picture of himself that he could find.
The veteran testified at a hearing at the RO in January 1994.
He stated the sandpaper surgery in service caused an
indentation in the scar area making it more noticeable. He
testified that he was currently subjected to derision because
of the scar and ground his teeth. At the hearing he
submitted a smaller version of the earlier photograph; he
said it had not been retouched.
II. Analysis
A. Service Connection for Scars of the Chin
The veteran's claim for service connection for burn scars of
the chin is well grounded, meaning plausible. 38 U.S.C.A. §
5107(a). With regard to the veteran’s representative’s
request for additional development to secure any pre-service
medical records, the veteran states he has no additional
photographs of himself, and the existence of the pre-service
scar is not in dispute. The probative value of pre-service
records in this context is dubious at best.
[T]he "duty to assist" is not a license
for a "fishing expedition" to determine
if there might be some unspecified
information which could possibly support
a claim. In connection with the search
for documents, this duty is limited to
specifically identified documents that by
their description would be facially
relevant and material to the claim.
Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (citations
omitted).
Because there are no identified material pre-service records,
the VA has fulfilled its duty to assist him in developing
facts pertinent to the claim. 38 U.S.C.A. § 5107(a).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131.
A preexisting injury or disease will be considered to have
been aggravated by active service, where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. Aggravation may not be conceded
where the disability underwent no increase in severity during
service on the basis of all the evidence of record pertaining
to manifestations of the disability prior to, during and
subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R.
§ 3.306.
The service entrance examination shows the veteran’s burn
scars of the chin preexisted service, and he does not contend
otherwise. Rather, he asserts an admittedly unsuccessful
dermabrasion (sandpapering) made the scar(s) more
disfiguring. In support of his contention, he submits a pre-
service photograph which shows no scarring of the jaw
whatsoever. The Board has carefully examined the photograph;
it is a formal picture, the kind taken in connection with a
high school yearbook. It is the Board’s opinion that this
picture, which does not indicate any hint of the admittedly
“ugly” pre-service scar, has little probative value as to the
extent of the pre-service scar. It may or may not have been
unretouched.
The service medical records do not show the dermabrasion made
the veteran’s chin scar more disfiguring. While it was noted
that the procedure was not successful, it was also noted the
sandpapering did not go deep “enough” and that the service
was not responsible for the scarring. It is, in the Board’s
opinion, unlikely that, in two surgical evaluations, there
would have been no mention of the fact that the dermabrasion
had aggravated the veteran’s scar or made it more unsightly.
The preponderance of the evidence establishes that the pre-
service burn scars of the chin did not increase in severity
because of service, and that disability was neither incurred
in nor aggravated by service. As the preponderance of the
evidence is against the claim, the benefit-of-the-doubt-
doctrine is inapplicable, and service connection must be
denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet.App. 49 (1990).
Secondary Service Connection for Bruxism
Service connection may be granted for a disease or injury
incurred or aggravated during a veteran’s active duty
service, but no compensation shall be paid if the disability
is due to the individual’s willful misconduct or abuse of
alcohol or drugs. 38 U.S.C.A. § 1131. A disability which is
proximately due to or the result of a service connected
disease or injury shall be service connected. When service
connection is thus established for a secondary condition, the
secondary condition shall be considered a part of the
original condition. 38 C.F.R. § 3.310. Secondary service
connection may also be granted for the degree of aggravation
to a non-service connected disorder which is proximately due
to or the result of a service connected disorder. Allen v.
Brown, 7 Vet. App. 517 (1995).
The veteran contends that he is entitled to service
connection for bruxism secondary to nervousness caused by
others making fun of his burn scars of the chin. There is no
argument that bruxism began in service or is directly related
thereto. Rather, the claim is strictly on a secondary basis.
Service connection, however, is not in effect for burn scars
of the chin. The Board observes that in a case such as this
one, “where the law and not the evidence is dispositive, the
claim should be denied or the appeal ... terminated because
of the absence of legal merit or the lack of entitlement
under the law.” Sabonis v. Brown, 6 Vet.App. 426, 430 (1994).
Hence, as the veteran has not been granted service connection
for burn scars of the chin, his claim of entitlement to
service connection for bruxism secondary to burn scars of the
chin must be denied in the absence of any legal merit. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310(a).
ORDER
Service connection for burn scars of the chin is denied.
Service connection for bruxism is denied
J. E. DAY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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